I heard lately of a case where someone mediating a dispute between A and B sent an email about the dispute to A with a bcc: to B.
A managed to examine the header of the email sufficiently to see the bcc: to B, and complained to the mediator.
My first reaction was “wow, I didn’t know you could do that!” Do lawyers now have to scrub their email headers the way they are supposed to scrub metadata out of documents before sending to the other side?
My second response was “wait a minute! What was the mediator doing sending a bcc: to B?” Shouldn’t the mediator disclose to both parties all communications made to either – at least subject to express requests for or undertakings of confidentiality – in either case, a hidden communication to the other party should be off limits.
S. 8 of Ontario’s Commercial Mediation Act (and s. 11 of Nova Scotia’s Act of the same name) say that the mediator may disclose any information received from a party, unless expressly requested to keep it in confidence. But that doesn’t really apply here, where the mediator’s own communication was in issue.
Any views from Slawians on either email headers as sources of metadata or on mediators’ duties not to communicate with hidden messages?